Radical Right Activist Judges and the Farce Called Originalism

A Washington Post editorial by Fareed Zakaria describes a bizarre theory called Originalism that the radical right Supreme Court sometimes relies on to get conservative outcomes in the law. According to the late radical right Justice Antonin Scalia, that the U.S. Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” As pointed out here repeatedly, there is no way to discern “what it meant when it was adopted” because the Founders, the drafters of Constitutional Amendments, congress and the people were bitterly and hopelessly divided on what the much of the Constitution, Amendments and laws meant or should mean. The Founders were divided over whether there should even be a new constitution at all, instead of merely revised Articles of Confederation. 

The historical record is clear. Originalism is irrational because there is no basis in fact for any claim that originalism is authoritative or real for most contested issues. It exists mostly in the minds of conservative authoritarian radicals who desperately need an excuse to do and get what they want using the courts. In general, advanced democracies believe that laws are interpreted based on a combination of changing societal standards, core democratic values and when it is clear, original understanding.[1]

What Originalism delivers is what radical authoritarian conservatives want, not principled law based on defensible sound reasoning (roughly logic) or core democratic values, e.g., the right to vote. In essence, even Originalism itself is beside the point. Radical conservative outcomes is the point, regardless of what the alleged controlling legal theory is. Zakaria writes: 

“And even in the United States, liberals and conservatives alike accept important deviations from originalism. Otherwise we would still have segregated schools, prohibitions against interracial marriage and laws outlawing homosexuality — all of which were deemed unconstitutional by judges who used the 14th Amendment of the Constitution to do so, even though it cannot be plausibly claimed that was the intent of Congress when it passed that amendment.

Many conservatives have argued that originalism is the only way to ensure that judges stay restrained and modest, not imposing their views on a society that did not elect them. (Chief Justice John G. Roberts Jr. refers to this as calling “balls and strikes.”) And perhaps the self-styled originalists would accomplish their goal if they actually practiced what they preach. But in fact, the new breed of judicial activists seems to be abandoning the restraint that Roberts prizes and is simply seeking conservative outcomes, using whatever means necessary.

The original sin was the 2000 Supreme Court Bush v. Gore decision, when conservative justices flagrantly violated their long-espoused principles to achieve their preferred political aim. The Constitution is crystal clear that states have final authority over the selection of their electors during a presidential election. Courts had long upheld that view.

And yet, in Bush v. Gore, the Supreme Court shut down Florida’s recount using a tortuous and novel interpretation of the 14th Amendment, which was ratified to give equal rights to Black people in 1868. The writers of that amendment could not possibly have meant that it prohibited different counties within a state from using their own approaches to counting ballots in an election — an utterly unrelated issue and something that was widespread in 1868 when the amendment was passed.

In a brilliant podcast, “Deep Background,” Harvard Law School professor Noah Feldman outlines this hypocrisy to Jeffrey Sutton, a federal appeals court judge who sees himself as a conservative originalist. Sutton’s response — to my ear — was that he believed Bush v. Gore had been wrongly decided.

And, in fact, after the ruling, judicial conservatives rarely cited or celebrated its rationale. Scalia’s response was usually three words: “Get over it” — not exactly an intellectual argument. Privately, according to Evan Thomas’s reporting, Scalia said he thought the decision was “a piece of s---.” In the most telling admission of its illogic, the majority opinion contains the remarkable guidance that the decision[2] should be viewed as a one-off and not cited as a precedent — contrary to the intended function of Supreme Court rulings.

Feldman’s podcast series — which is well worth listening to — highlights a growing divide between conservatives who viewed originalism as part of a philosophy of modesty and restraint and new activists who are untroubled by the hypocrisy and simply seek conservative outcomes. It is these activists who have been able to weaken Obamacare (clearly violating the original intent of the legislature that passed it) and invent new rights for corporations that had never before been found in the Constitution (as they did in the notorious Citizens United case).

All this might come to a head next week. The Pennsylvania Supreme Court has ruled that ballots sent before the end of the election that arrive up to three days late should be counted. The Republican Party appealed the decision to the U.S. Supreme Court, which still had a vacancy and deadlocked 4 to 4, with the new conservatives plus justices Samuel A. Alito Jr. and Clarence Thomas expressing willingness to intervene, and the liberals, plus Roberts, acting as the voices of judicial restraint. 

On Wednesday, if Trump is ahead in Pennsylvania, the Republicans will again ask the court to shut down the vote count. This time, the court cannot deadlock since there is now a ninth justice, Amy Coney Barrett. She will have to decide whether she actually believes in the ideas she and Scalia espoused — or whether, like her mentor, when the stakes are high, she will choose power over principle.”

My bet is that the new radical conservative court will choose power over principle. Those radical judges were put there to exercise power and remake America in the self-righteous, intolerant, radical right image. They are not there to be principled or concerned with what the American people want.

Footnotes: 

1. The practice in America is called American Legal Realism. I discussed it in this book review, which included this quote from the book: 

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.”

Forbidden ends include legalized abortion, legalized same-sex marriage, legal interracial marriage and voting rights (to avoid ‘mob rule’), all of which most Americans now support. What used to be a mostly peaceful process of social progress, is now now being reversed by legal, legislative and executive coercion by the radical right. We are on the road to tyranny, kleptocracy and loss of civil liberties.

2. That source summarised the limiting of the scope of its opinion in one sentence. “Loathe to make broad precedents, the per curiam opinion limited its holding to the present case.” In other words, the Supreme Court knew its decision was, as Scalia put it, ‘a piece of s---’. Nonetheless, it did get the job done and Bush got to be president thanks to radical conservative judicial activism pretending to be authoritative and principled in the guise of originalism.